Generative artificial intelligence (AI), i.e., the generation of content such as text, speech, image(s), etc., interpreted from and manipulated in connection with pre-existing data, has been a trending topic in the news of late. Recently, it's been mentioned as a tool to create the voice of an existing celebrity such as Drake or a dead rock musician such as John Lennon. Other examples include the voice of the roughly eighty-year-old Paul McCartney on a recording that has been processed to sound like his 20-something-year-old self.

One might ponder the roles traditional forms of intellectual property (IP) rights, such as trademarks and copyrights, play in AI creations. Moreover, one might wonder how to reign in AI to place bounds on its creations.

A trademark can, among other things, help establish a brand of goods or services with which the trademark is used. Consequently, a trademark can prevent the attribution of an AI-created work to an artist when the trademark owner has not authorized that work. In practice, an original artist may secure a trademark for the artist's name (e.g., their band name), preventing the AI-generated work from being sold under the original artist's name. Nevertheless, even without explicitly identifying an artist, the public may still associate a new work with that artist based on specific attributes of the artist relating to, for instance, the artist's voice or image.

A copyright provides certain exclusive rights to the copyright holder. These rights include, among other things, the right to reproduce the copyrighted work, the right to create works derived from the copyrighted work (i.e., derivative works), and the right to distribute copies of the copyrighted work. A copyright is created when a work of original human authorship becomes fixed in a tangible medium. While a copyright could not be used to prevent others from creating original works of authorship (i.e., works not derived by copying), creating an AI-generated voice or image of a celebrity can provide examples of attempts to benefit from someone's fame. Several states have laws that prohibit such creation if done so without permission. New York Civil Rights Law §50 and §51 detail protection against the unauthorized creation of a performer's digital replica, i.e., the reproduction of a performer's voice, face, or body. Creating a digital replica is particularly poignant to the capabilities of AI.

For instance, New York Civil Rights Law §51 provides, among other things, injunctive relief for violating a privacy right. It states the following:

Any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article…

California represents another large state and large sales market that protects against the unauthorized creation of a performer's digital replica. California Civil Code §3344 provides, among other things, the following:

Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.

Potential liability from running afoul of the preceding New York and California privacy laws alone may cover enough market and sales area to provide a credible financial deterrent to the unauthorized use of a person's voice, likeness, or other aspects of a digital replica.

While the foregoing may have greater applicability to famous rather than average citizens, generative AI provides yet another reason to acquire intellectual property (IP) protection and enforcement. Despite the limitations noted above concerning the protections afforded through copyrights and trademarks, registering copyrights and trademarks can help establish a sales market and help establish value in the case of IP misappropriation. Further, early copyright registration at the United States Copyright Office can help facilitate getting a statutory award for damages (without proving actual damages) in a case of copyright infringement. Moreover, a trademark, among other things, helps establish a brand of goods or services with which the trademark is used. Consequently, trademarks can help establish fame, which boosts the inherent value of the right of publicity.

How Gallium Law Can Help

Especially as you or your company become more well-known, building and establishing your IP can build the value of your IP as well as provide greater control over how that IP is used and monetized. As the law develops concerning AI, building an IP portfolio around traditional forms of IP may provide a foundation for establishing even greater protections in the future over digital replicas. This may create an additional source of licensing revenue. To learn more about building and establishing your IP portfolio, fill out this online form or call us at 651-256-9480 to schedule a consultation.

*The information in this article is not legal advice and should not be relied on. The content of this article is for informational purposes only and is meant as a starting point in your search for answers to your legal questions.